The Andhra Bank Ltd vs R. Srinivasan and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 508 of 1958

Decision Date: 31 August 1961

Coram: P.B. Gajendragadkar, M. Hidayatullah

The case titled The Andhra Bank Ltd versus R. Srinivasan and Others was decided on 31 August 1961 by the Supreme Court of India. The opinion was delivered by Justice P B Gajendragadkar, with Justices M Hidayatullah and Subbarao forming the bench. The petitioner was The Andhra Bank Ltd and the respondents were R Srinivasan and others. The citation of the judgment is 1962 AIR 232 and 1962 SCR (3) 391, and it appears in the citator as 1979 SC1915 (6). The matter concerned the application of private international law to judgments rendered against legal representatives who were not resident within the jurisdiction of the court that passed the decree. The issue specifically related to whether a legal representative who is a legatee under a will could be deemed to represent the whole estate for purposes of Section 2(11) of the Code of Civil Procedure, 1908. The factual background involved two connected suits for recovery of money that the appellant had instituted in the Hyderabad Court. During the pendency of those suits one of the respondents died. His sons, daughters and grand‑daughters, who held separate portions of his property under a deed of settlement and a registered will, were joined as his legal representatives. The Hyderabad Court decreed the suits, but the decree could not be fully satisfied. Consequently the appellant commenced a fresh suit in the Madras High Court for the balance, relying on the Hyderabad judgments. At the time the original suits were filed, the deceased respondent was a resident of Hyderabad, and therefore the Hyderabad Court had jurisdiction. After his death, however, his legal representatives were not residents of Hyderabad. The respondents argued that the Hyderabad Court lacked jurisdiction over them and that its foreign judgments were not binding. The Madras High Court applied the rule of private international law that personal actions must be brought in the forum where the defendant resides and held that, because the legal representatives were non‑residents, the decrees against them were invalid. The Supreme Court held that the rule of private international law could not be invoked to defeat a suit that was originally competent and filed in a competent court. The Court stated that where a defendant dies during the pendency of a suit and non‑resident legal representatives are brought in to defend the suit to the extent of the deceased’s assets, the jurisdiction of the court remains unchanged and the original competence of the suit is not impaired. In reaching this conclusion the Court referred to several authorities, including Sardar Gurdyal Singh v. The Raja of Faridkote (1894) L R 21 I A 171, Travers v. Helley [1953] P 246, Dunne v. Saban [1955] P 178, Mountbatten v. Mountbatten [1959] P 43, Dulles v. Vidler [1951] 1 Ch 842, Schibsby v. Westinholz (1870) L R 6 Q B 155 and Emanuel v. Symon [1908] 1 K B 302, as well as Kanchamalai Pather v. Ry.

The Court observed that the authorities cited in Shahaji Rajah Saheb, (1936) I.L.R. 39 Mad. 461 and Erara v Sidramappa Pasare, (1897) I.L.R. 21 Bom. 424 were not applicable to the matter before it. It examined Section 2(11) of the Code of Civil Procedure and held that the expression “a person who in law represents the estate of a deceased person” must be understood to include legatees appointed under a will, and that the term “estate” does not necessarily refer to the entire property of the deceased. The Court disapproved the earlier decision in Natesa Sastrigal v. Alamelu Achi, (1950) 1 M.L.J. 476. The judgment concerned Civil Appeal No. 508 of 1958, an appeal from the decree dated 27 July 1951 issued by the Madras High Court in Appeals 172 and 194 of 1947. Counsel for the appellant was identified, and separate counsel were noted for respondents numbered 1 to 3, 5 to 9, and 11 to 12. The appeal was decided on 31 August 1961, and the judgment was delivered by Justice Gajendragadkar.

This appeal was brought before the Supreme Court on a certificate issued under Article 133(1)(a) of the Constitution. The case arose out of suit O.S. No. 83 of 1945, filed by the appellant, Andhra Bank Limited, against twelve respondents. The suit relied upon two foreign judgments, exhibited as exhibits P.1 and P.3, which the appellant had obtained against the respondents in Hyderabad. Respondent 1 was the son of Raja Bahadur Krishnamachari (hereinafter referred to as “Raja Bahadur”), who died in March 1943. Both respondent 1 and his father were residents of Hyderabad. Raja Bahadur, originally a practising advocate in Hyderabad, had later been appointed Advocate‑General. In September 1935, respondent 1 incurred an overdraft liability of Rs 14,876‑3‑7 to the appellant. In May 1938, he further borrowed Rs 8,217‑11‑6 against a pledge of sanitary‑ware goods. In January 1932, Raja Bahadur executed a letter of guarantee, exhibited as exhibit P‑18, in which he guaranteed repayment of any monies borrowed by respondent 1 up to a maximum of Rs 20,000. Because the amounts due from respondent 1 remained unpaid, the appellant instituted two suits in the Hyderabad High Court, numbered 47 and 53 of Fazli 1353, to recover the sums. These suits were subsequently transferred to the City Civil Court and renumbered as Suits 62 and 61 of Fazli 1353. While the suits were pending, Raja Bahadur, who had been impleaded along with his son, died. Following his death, the appellant joined respondents 2 to 12 in the two suits, alleging that they were the legal representatives of Raja Bahadur because they possessed distinct portions of his property under a settlement deed dated 1940 and a registered will executed by him on 28 August 1942. The appellant therefore sought to enforce the judgments against the newly joined respondents in addition to the original claim against respondent 1.

According to the record, the guarantee executed by Raja Bahadur on 28 August 1942 was exhibited as Exhibit P‑7. In the two related suits, the appellant secured decrees with costs on 5 October 1944. Those decrees ordered respondent 1 to discharge the entire sum claimed by the appellant against him, and directed respondents 2 through 12 to pay twenty thousand rupees, which represented the maximum amount guaranteed by Raja Bahadur. In addition, each respondent was required to pay interest at a rate of three per cent on the sum adjudged payable by them.

While the suits were still pending, the pledged goods in Suit No. 62 were put up for auction. The proceeds of that sale amounted to four thousand two hundred thirty‑two rupees, one annas and seven pies, and those proceeds were credited against the debt when the court finally passed the decrees in the two suits. The appellant claimed that, after crediting the auction proceeds, a balance of twenty‑seven thousand nine hundred twenty‑three rupees, six annas and five pies remained unpaid. Consequently, in the present proceeding the appellant sought recovery of the whole balance from respondent 1 and demanded that respondents 2 through 12 each pay the guaranteed amount of twenty thousand rupees together with interest and costs.

The family relationships were set out as follows: respondent 2 was the son of Raja Bahadur; respondents 6, 7, 8 and 9 were minor sons of respondent 2; respondents 3, 4 and 5 were the sons of respondent 1; respondent 10 was the daughter of Raja Bahadur; and respondents 11 and 12 were grand‑daughters of Raja Bahadur through his two daughters. Respondent 2, appearing both in his own capacity and as guardian of his minor sons, opposed the appellant’s claim. He argued that the courts of Hyderabad lacked jurisdiction over them, rendering the decrees of the City Civil Court void. He further contended that he and his minor sons had not been served with notice of the suit and therefore had not submitted to the jurisdiction of that court.

Respondent 1 did not contest the suit, but his sons did. They asserted that they were not the lawful representatives of Raja Bahadur and that they had been improperly joined as parties in the Hyderabad suit. In support of this stance they aligned with respondents 2 and 6‑9, maintaining that the Hyderabad court was not a court of competent jurisdiction and pleading that the foreign judgments were not based on the merits of the case. Respondents 10, 11 and 12 filed similar pleas.

On the basis of these pleadings, the trial judge identified five principal issues. He concluded that the City Civil Court of Hyderabad possessed jurisdiction to try the suits and that the respondents who contested the decree were bound by it. He further held that the respondents who had been impleaded as legal representatives of the deceased Raja Bahadur were indeed his legal representatives in law and had been properly joined. The remaining issues framed by the trial court, which related to the other contentions raised by the respondents, were also decided against them, although the detailed findings on those points were not reproduced. Ultimately, the court issued a decree in favour of the appellant, granting the amounts claimed against respondent 1 and against the assets of Raja Bahadur held by respondents 2 through 12, together with interest at three per cent per annum from the date of the plaint till realization, and ordered the respondents to pay the appellant’s costs.

The trial court ordered that interest be payable at three per cent per annum from the date the plaint was filed until the date of realisation, and it further directed the respondents to pay the costs of the appellant. Two companion appeals were subsequently filed in the Madras High Court. Respondents three to five preferred Civil Appeal No 172 of 1947, while respondent two together with his sons, who are respondents six to nine, preferred Civil Appeal No 194 of 1947. In both appeals the respondents contended that the trial court had erred in finding the City Civil Court of Hyderabad to be a court of competent jurisdiction and consequently held that the decrees it passed were invalid. They further argued that the decrees violated natural justice because respondents two to twelve were not, in fact, the legal representatives of Raja Bahadur, and therefore the Hyderabad court had acted illegally in passing the decrees against them. The High Court accepted the first contention, determining that the City Civil Court of Hyderabad was not competent to try the suits and that, as a result, the decrees could not be enforced under section 13(a) of the Code of Civil Procedure. The High Court noted that the appellant had failed to establish that any of the contesting respondents had submitted to the jurisdiction of the Hyderabad court. Because the High Court concluded that the decrees were invalid, it declined to consider the two additional arguments raised by the respondents. Consistent with its finding of invalidity, the High Court allowed both appeals and dismissed the appellant’s suit. The appellant then approached this Court, presenting a certificate issued by the High Court.

The primary question for determination in this appeal is whether the City Civil Court at Hyderabad possessed the requisite jurisdiction when it rendered the judgments in the two suits filed by the appellant there. Section 13 of the Code of Civil Procedure provides that a foreign judgment is conclusive as to any matter directly adjudicated upon between the same parties, except where the judgment was rendered by a court lacking competent jurisdiction. It is undisputed that at the time the suits were instituted in Hyderabad, both Raja Bahadur and respondent one were residents of Hyderabad, rendering the Hyderabad court competent to try the suits at that stage. The actions in question were in personam, but they fell within the jurisdiction of the Hyderabad court at their inception, and this fact is not contested. It is also not seriously disputed that respondents two to twelve, who were added as legal representatives of the deceased Raja Bahadur, did not reside in Hyderabad at the relevant time and were therefore considered foreigners for jurisdictional purposes.

In this case the respondents numbered two through twelve were not residing in Hyderabad at the relevant time and were therefore classified as foreigners for jurisdictional purposes. The High Court applied the well‑established rule of private international law that requires all personal actions to be instituted in the courts of the country where the defendant is domiciled, concluding that because respondents two to twelve had not submitted to the authority of the Hyderabad Court, that court lacked jurisdiction to try the claim against them. The High Court relied upon the rule articulated by Dicey in rule twenty‑six, which states that when a defendant in a personal action is not present in England at the time the writ is served, the English court has no jurisdiction to entertain the action. Cheshire’s treatise on private international law explains that this rule rests on the principle of effectiveness, noting that jurisdiction is dependent on the court’s physical power and that the power to issue process can be exercised only against persons within the sovereign territory of the court. Consequently, a court cannot extend its process beyond its territorial limits to exert sovereign authority over non‑resident foreigners. This limitation on the competence of courts to adjudicate personal actions against non‑resident foreigners was emphatically confirmed by the Privy Council in Sirdar Gurdyal Singh v. The Rajah of Faridkote, where the Earl of Selborne, speaking for the Board, described a decree rendered in absentee by a foreign court to which the defendant had not submitted as an absolute nullity under international law. While this principle is indisputable, the remaining question is whether the High Court correctly applied it to the present appellant’s case. It is undisputed that at the time of their filing, the two suits brought by the appellant in the Hyderabad Court were competent because they were directed against residents over whom the Hyderabad courts possessed jurisdiction. Consequently, there is no doubt that the suits were validly instituted before a court of competent jurisdiction. The issue therefore turns on whether, after the death of Raja Bahadur, the introduction of his legal representatives—who were non‑resident foreigners—onto the record defeats the continuation of those suits in the same court that originally had proper jurisdiction.

In this matter the High Court had ruled that the question of whether the suits could continue after the death of Raja Bahadur should be decided in favour of the respondents, and the appellant argued that the High Court’s answer was erroneous. Counsel for the appellant, identified as Mr. Ranganathan Chetty, submitted that when the effect of the private international law rule relied upon by the High Court is examined, recent judicial decisions demonstrate a tendency to relax the strict application of that rule. He drew the Court’s attention to Exception 8, which Dicey enumerates as an exception to the general rule, stating that “whenever any person, out of England, is a necessary or a proper party to an action properly brought against some other person duly served with a writ in England, the Court may assume jurisdiction to entertain an action against such first mentioned person as a co‑defendant in the action” (pages 201‑202). The appellant’s argument is that this exception shows that when a personal action is properly instituted against a resident in England and a non‑resident foreigner is identified as a necessary or proper party to sustain the claim against the resident, the court may join the foreigner as a co‑defendant even though the foreigner does not reside within the jurisdiction, thereby indicating that the rule is not applied rigidly in every circumstance. To reinforce this point, counsel also cited the decision of the Probate Court in Travers v. Holley. In that case a husband and wife were married in the United Kingdom in 1937 and shortly thereafter moved to Sydney, New South Wales, taking all their belongings with them. The husband later believed that the Commonwealth offered better prospects, settled in Sydney, and invested in a business that failed at the outbreak of war. He subsequently worked on a sheep farm in northern New South Wales while his wife remained in Sydney, where a child was born in 1938. The husband later secured a commission in the Australian forces and was subsequently transferred to the British forces. In August 1943 the wife filed a petition for divorce in the Supreme Court of New South Wales on the ground that she had been deserted by her husband since August 1940. The petition succeeded and a decree was granted, becoming absolute on 30 November 1944. The husband was served with notice of the petition but did not file a defence. Both parties later remarried, but the husband’s second marriage proved unsuccessful and, in 1952, he obtained a decree for divorce on the ground that the Australian decree

The decree of divorce issued by the Supreme Court of Now South Wales was challenged on the ground that it was void because, when it was granted, neither the husband nor the wife was domiciled in New South Wales and because the wife, by entering into a second marriage, had committed adultery. The wife appealed against that decree, and the appellate court allowed her appeal. In examining the question of whether the decree of the New South Wales court was valid, the Court observed that under section 16(a) of the New South Wales Matrimonial Causes Act, No 14 of 1899, and under section 13 of the English Matrimonial Causes Act of 1937, the courts of New South Wales and the English courts claimed identical jurisdiction. The Court further stated that it would be contrary to legal principle and to comity for the courts of this country to refuse to recognise a jurisdiction which, mutatis mutandis, the foreign courts themselves claimed, and that even if, during the period of desertion, the husband had reverted to his original English domicile, the New South Wales court would nevertheless retain jurisdiction.

In effect, applying the rule of reciprocity, the Court held that the husband could not successfully contest the validity of the New South Wales decree on the basis that the relevant matrimonial statutes were substantially the same. The Court added, however, that the principle articulated in the case of Travers (1) has been limited on two later occasions to the particular facts and circumstances of that case. In Dunne v Saban (2) it was noted that the observations in Travers v Holley (1) regarding the recognition of foreign decrees founded on a similar jurisdiction were directed to a situation where the extraordinary jurisdiction of the foreign court corresponded almost exactly with the extraordinary jurisdiction exercisable by this Court. Moreover, in Mountbatten v Mountbatten (3) Justice Davies expressed a mild objection to extending the principle further, as recorded on page 81 of the report.

Mr Chetty, however, argued that the rule of reciprocity is gaining increasingly broad acceptance in contemporary decisions. He contended that, based on those modern authorities, the statutory provisions in Hyderabad and in India being identical, the rule of private international law on which the High Court relied should not be applied rigidly to the present case. He cited the authorities (1) [1953] P. 246, (2) [1955] P. 178 and (3) [1959] P. 43 in support of his position. Further, Mr Chetty drew the Court’s attention to the obiter comments of Lord Denning, L.J., in In Re Dulles Settlement (No 2) and Dulles v Vidler (1). Lord Denning observed that the procedural rules governing the Courts of the Isle of Man were aligned with the English rules concerning service out of jurisdiction contained in Order 11, and he added that “I do not doubt that our Courts would recognise a judgment properly obtained in the Manx Courts for a tort committed there, whether the defendant voluntarily submitted to the jurisdiction or”.

In this passage the Court observed that the principle of reciprocity would operate in the opposite direction, so that the Manx Courts would be expected to recognise a judgment obtained in our Courts against a resident of the Isle of Man, provided that the defendant had been properly served out of our jurisdiction for a tort committed here. The Court noted that counsel for the petitioner, Mr. Chetty, emphasized that this observation was again grounded on the rule of reciprocity and illustrated a modern tendency to relax the strict application of the rule of private international law in the matter before the Court. The Court further indicated that the current editor of Dicey’s “Conflict of Laws” had commented on the observations of Denning, L.J., stating that the suggested application of the principle of reciprocity was of a more sweeping character than its application to foreign divorces, because it extended to enforcement as well as recognition, and because if applied logically it would mean that English Courts might enforce foreign judgments based on any of the numerous jurisdictional grounds enumerated in Order 11, rule 1 of the Rules of the Supreme Court. The editor further expressed doubt that English Courts would be prepared to carry the principle of reciprocity that far, noting that the suggestion under discussion derived from a single Lord Justice in an obiter dictum and was directly at variance with the weighty decision of the Court of Queen’s Bench in Schibsby v. Westenholz (1) [1951] Ch. 842. Consequently the Court held that the general argument that the rigour of the rule should be relaxed could not be accepted. Nonetheless, the Court observed that even if the rule had to be applied, a question remained as to whether it must be applied at the inception of the suit or later, for example when, after the death of one of the defendants, his legal representatives were sought to be brought on the record. In addressing that question the Court recalled the five cases set out by Buckley, L.J., in Emmanuel Ors. v. Symon (2), in which the English Courts would enforce a foreign judgment. Buckley, L.J. explained that the courts would enforce a foreign judgment in actions in personam when (1) the defendant was a subject of the foreign country in which the judgment was obtained; (2) the defendant was resident in the foreign country when the action began; (3) the defendant, in the character of plaintiff, had selected the forum for which he was later sued; (4) the defendant had voluntarily appeared; and (5) the defendant had contracted to submit himself to the forum in which the judgment was obtained. The Court noted that all of these five situations indicated that the material time at which the test of the rule of private international law must be applied is the time at which the suit is instituted.

In this case the Court observed that the rule of private international law must be applied at the moment when a suit is instituted, not later simply because the legal representatives of a deceased defendant, who have been brought on the record, happen to be non‑resident foreigners. The procedural step of adding the legal representatives to the proceedings does not, by itself, trigger the operation of that rule. Consequently, the rule is to be applied at the commencement of the action, and, on that basis, there was no doubt that the two suits filed in the City Civil Court at Hyderabad were properly instituted and that the Hyderabad Court had the jurisdiction to try them. Formally, the appellant’s claim against respondents 2 to 12 in that Court appeared to be a personal claim, but in substance the appellant could enforce the decree only against the assets of the deceased Raja Bahadur that were in the possession of respondents 2 to 12. This is the correct legal position under section 52 of the Code of Civil Procedure of India and the corresponding provision of the Hyderabad Code. Moreover, when the legal representatives are entered on the record, the procedural law of both India and Hyderabad requires that they may defend the action only on grounds that the deceased Raja Bahadur himself could have raised. In other words, the defence available to the legal representatives must, as expressed in O. 22, rule 4, sub‑rule (2), be appropriate to their character as representatives of the deceased, and they cannot rely on any plea that the deceased could not have taken. This clearly defines the nature of the contest between the legal representatives and the appellant. The appellant is, in substance, pursuing the claim originally made against the deceased Raja Bahadur, and it is that same claim which respondents 2 to 12 may contest in a manner suitable to their status as legal representatives. If the suits originally filed in Hyderabad were competent, there is no basis for asserting that they became incompetent merely because one of the defendants died. The Hyderabad Court possessed jurisdiction at the time of filing, and no principle of private international law suggests that such jurisdiction automatically ceases when a defendant dies and is substituted by non‑resident foreign legal representatives. In considering this aspect, the Court referred to Salmond’s “Jurisprudence,” which explains that inheritance represents a legal continuation of the dead person’s personality, allowing a living substitute to own, exercise, and fulfil the rights and obligations of the deceased until the estate is finally administered.

It was explained that, although a person’s natural life may end, the law treats the deceased individual as continuing in a legal and fictitious sense through his representatives. In this legal fiction the representative is identified by law with the person he represents. Consequently, any rights that the deceased could no longer exercise personally, and any obligations that he could no longer perform personally, are transferred to a living substitute who stands in his place. In this manner the legal personality of a man survives his physical existence until such time as his obligations have been fully performed and his property has been properly dealt with, after which his representation among the living is no longer required. This observation was quoted from Salmond’s Jurisprudence (11th edition, page 482). These principles bolster the appellant’s argument that, for purposes of jurisdiction, the suits filed against Raja Bahadur retained their essential character even after his death and therefore continued as suits against his estate, represented by his legal representatives. If this legal position is correct, there can be no valid ground for claiming that the court which originally possessed jurisdiction over the suits lost that jurisdiction merely because the legal representatives of the deceased Raja Bahadur were non‑resident foreigners. To adopt the opposite view would lead to the absurd result that the suits would cease upon the death of Raja Bahadur, even though the cause of action survives, and that any decree obtained against his assets could be executed against his legal representatives.

The High Court appeared to hold that the jurisdiction of the Hyderabad Court terminated with Raja Bahadur’s death with respect to the appellant’s claim against him, and that this termination could not be avoided by proceeding against his legal representatives. The High Court further stated that there existed judicial authority supporting this conclusion. The authority relied upon was the decision of the Full Bench of the Madras High Court in Kanchamalai Pathar v. Ry. Shahaji Rajah Saheb & Ors. (1936) I.L.R. 59 Mad. 461. To understand the point decided by that Full Bench, the relevant facts of the case were recounted. In that case, a money decree had been obtained and certain immovable property belonging to the judgment debtor had been attached. A proclamation of sale was issued and an order for sale was passed. While these proceedings were pending, the judgment debtor died. Although the decree‑holder and his counsel were aware of the debtor’s death, they did not file an application under section 50 of the Code of Civil Procedure seeking leave to execute the decree against the legal representatives of the deceased, nor did they serve the required notice prescribed by Order XXI, rule 22, sub‑rule (1). The sale proceeded and the property was purchased by a stranger. A dispute then arose as to whether the sale was void or merely voidable, and the Full Bench ultimately held that the sale was void.

The Full Bench held that the sale was void. Before the Full Bench, it had been argued that section 50 of the Code of Civil Procedure applied only at the stage when a party needed to obtain leave to execute a decree against the legal representatives of a deceased judgment‑debtor, and that the provision did not extend to cases where the judgment‑debtor was alive at the time the attachment was effected. The argument asserted that, once an attachment was made, the attached property became “custodia legis” and the liability attached to the property rather than to the individual debtor. On that basis, the failure to bring the legal representatives onto the record under section 50 or to obtain notice under Order XXI, rule 22, sub‑rule (1) (as reported in (1936) I.L.R. 59 Mad. 461) was explained. The Court rejected this contention. In rejecting it, Justice Varadachari observed that, upon the death of a person, proceedings for recovery of a debt due from him may be taken only against his estate and not against his legal representatives, a view that is not supported by either legal history or the language of the Procedure Code. Similarly, Justice Venkataramana Rao observed that when a person dies he disappears from the court’s record, leaving no party against whom the court can exercise jurisdiction, thereby depriving the court of a essential element of jurisdiction. He added that a decree cannot be passed without first bringing the deceased’s representative onto the record; once the representative is so brought in, he becomes the defendant, and after the decree is passed he becomes the judgment‑debtor. These observations, which the High Court relied upon, must be read in the factual context of that case and understood in light of the argument that was rejected. The Full Bench’s primary concern was to decide whether, with respect to property that had been attached in execution of a decree, proceedings under section 50 and under Order XXI, rule 22, sub‑rule (1) were required. The Bench concluded that when a judgment‑debtor dies, no action may be taken against his estate unless his legal representative is first brought onto the record, after which orders may be passed against the deceased’s assets in the representative’s hands. In the present case, the Court held that the observations from that earlier decision could not be invoked because the present problem is materially different. The same caution applies to the observations made by Justice Ranade in Erava & Anr. v. Sidramapa Pasare (1) (1897) I.L.R. 21 Bom. 424, where a mortgagee obtained a decree against mortgagor N, but N died before execution, leaving his daughters as heirs. The decree‑holder then applied for execution against the deceased judgment‑debtor through his heir and nephew.

R. R appeared before the court and asserted that he was not an heir of N, claiming that N’s daughters were the rightful heirs. Nevertheless, the daughters were not joined as parties to the execution proceedings, and no notices were served on them under section 248 of the Code (Act X of 1877). The property in question was subsequently sold, and the decree‑holder purchased it subject to his mortgage. The sale was later confirmed and a sale certificate was issued. After the sale, the daughters of N instituted a suit against the mortgagee seeking redemption of the property. The mortgagee defended the suit by pleading that, having acquired the property at a court‑ordered sale, he was entitled to retain it free from any redemption claim by the plaintiffs. The High Court rejected this defence. Judges Candy and Jardine, JJ., based their conclusion on the principle that even if the purchaser at the auction obtained absolute title, the present suit was filed within twelve years of the sale and therefore the plaintiffs were entitled to redeem. By contrast, Justice Ranade held that the sale proceedings were null, void, and beyond jurisdiction because the true legal representatives of N had not been brought on record. In this regard, Justice Ranade dismissed the auction purchaser’s argument that the sale merely affected the estate of the deceased N and that the omission of the heirs’ names from the execution record was a mere informality. He explained that, according to law, execution proceedings could not lawfully continue after N’s death unless his actual heirs and legal representatives were joined as parties. Consequently, the issue before the High Court in that earlier case differed fundamentally from the matter before this Court, and the observations of that case could not aid the respondents in arguing that the Hyderabad Court lost jurisdiction after the death of Raja Bahadur because his legal representatives were non‑resident foreigners. Returning to the specific question presented for determination in this appeal, the Court is inclined to hold that the rule of private international law does not apply where the suit, at the time of filing, was competent and the court before which it was filed possessed jurisdiction to try it. In such circumstances, if a defendant dies and his legal representatives happen to be non‑resident foreigners, the procedural step of bringing those representatives on the record is intended solely to enable them to defend the suit in their capacity as legal representatives of the deceased. Accordingly, the jurisdiction of the court remains intact and the original competence of the suit is not impaired. In form the action is against the legal representatives, but in substance it proceeds against them as representatives, with their liability ultimately limited to the assets held by the estate of the deceased.

The Court explained that although the suit was formally brought against the legal representatives, in substance it continued against them in their capacity as representatives, and the measure of their liability was ultimately determined by the value of the assets of the deceased that were held by them. On that basis the Court held that the High Court had erred in overturning the trial court’s finding that the Hyderabad Court possessed competence to try the two suits that had been filed before it. Consequently, the Court found it unnecessary to examine whether any of the legal representatives had, or had not, submitted to the jurisdiction of the Hyderabad Court.

The discussion then turned to the additional contention raised by counsel for the respondents, namely that respondents numbered two through twelve, who possessed various portions of property belonging to the deceased Raja Bahadur under his will, could not be described as his legal representatives within the meaning of section 2(11) of the Code. The Court noted that section 2(1) declares, inter alia, that a legal representative means a person who, in law, represents the estate of a deceased individual and that it also includes any person who intermeddles with the estate of the deceased. The Court observed that the phrase “legal representative” had not been defined in the Code of 1882, a circumstance that had given rise to divergent judicial opinions on its scope. The Court referred to the decision in Dinamoni Chaudhurani v. Elahandut Khan (1904) 8 C.W.N. 843, where the Calcutta High Court examined these conflicting authorities. It recalled that an argument had been advanced before that Court that the term used in section 234 of the Code should be construed narrowly, limited only to heirs, executors or administrators, on the ground that the expression was borrowed from English law and its ambit should not be broadened. The Court stated that this narrow interpretation had been rejected by Justices Brett and Woodroffe. Justice Woodroffe, after reviewing the authorities, observed that judicial decisions had expanded the meaning of “legal representative” beyond its ordinary sense of “administrator, executor and heir,” and although such expansion had been the subject of doubt and occasional conflicting rulings, it was now too late to revert to the stricter construction. Justice Woodroffe consequently held that the term was not confined to administrators, executors or heirs, but should be understood to include any person who, in law, represents the estate of a deceased judgment‑debtor. The Court pointed out that this view, as expressed by Justice Woodroffe, had been incorporated into the present definition of “legal representative” found in section 2(11). The Court noted that the respondent’s counsel conceded that a universal legatee qualified as a legal representative and did not dispute that a person who intermeddles even

The Court observed that a person who intermeddles with a part of the estate of a deceased individual is also a legal representative, but the learned counsel argued that a legatee who receives only a portion of the estate under a will does not represent the estate and therefore is not a legal representative within the meaning of section 2(11). The Court stated that it was not persuaded by this argument. It explained that the purpose of expanding the scope of the term “legal representative” as contained in the present definition would be defeated if legatees who obtain separate portions of a deceased’s estate were held to be outside its coverage. Logically, the Court found it difficult to reconcile such a contention with the accepted position that any person who intermeddles with a part of the estate is a legal representative. Moreover, the Court warned that accepting the argument would allow the estate of a deceased debtor to evade legitimate liability for the debtor’s debts simply by the debtor making several legacies to different individuals in his will. The Court further reasoned that, as a matter of construction, if various intermeddlers can represent the estate, then different legatees can likewise represent it. Regarding the intermeddlers, the Court noted that they are said to represent the estate even though they hold parcels of the estate, and therefore there should be no difficulty in holding that the phrase “a person who in law represents the estate of a deceased person” includes the various legatees named in the will. The Court rejected any justification for interpreting “estate” in this context to mean only the whole estate. Consequently, the Court was satisfied that the plain construction of section 2(11) runs contrary to the counsel’s argument, and that considerations of logic and common sense also oppose it. In support of his position, counsel cited a decision of the Madras High Court in Natesa Sastrigal v. Alamelu Achi (1), wherein the Madras High Court appeared to observe that section 2(11) does not include legatees of part of the estate. With respect, the Court held that this observation does not represent the correct interpretation of section 2(11). Accordingly, the Court held that the foreign judgments rendered by the City Civil Court at Hyderabad are judgments of a court of competent jurisdiction, and therefore the defence raised by respondents 2 to 12 under section 13(1) must fail. The Court also held that respondents 2 to 12 are the legal representatives of the deceased Raja Bahadur, and thus the estate of the deceased Raja Bahadur was sufficiently represented by them when those judgments were pronounced. In the result, the appeal was allowed, the decrees passed by the High Court in appeal numbers 172 and 194 of 1947 were reversed, and the decree of the trial court was set aside.

In the case bearing the designation Suit No. 83 of 1945, the appellate authority issued an order that reinstated the suit and directed that the costs of the proceedings be awarded throughout the litigation. By stating that the suit was restored, the court indicated that the earlier dismissal or termination of the action was set aside and that the parties could proceed with the suit as if the interruption had not occurred. The direction that costs were to be awarded throughout meant that the party to whom costs were granted would be compensated for the entire period of the dispute, covering all stages from the inception of the suit up to the present order. In addition, the court expressly held that the appeal brought before it was allowed, signifying that the appellant’s request for relief was granted and that the decision of the lower court was overturned in favour of the appellant. This combined outcome of restoration, comprehensive cost award, and allowance of the appeal was recorded in the legal reporter as citation (1) [1950] 1 M. L. J. 476, thereby providing a reference for future citation and indicating the year and source of the published judgment.